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If what is required, as I say, is additional courses in hairdressing, how can the local authority secure it without really getting its fingers inside the operation of a college? What actually is meant by "secure"? If I have to secure the places that are available, it means that I have to ensure that they are not available to anyone else. I need them for people in my local authority area. If I am going to commission 20 new places to study hairdressing at, say, New College in Huddersfield, I am not going to have people in Manchester coming in and taking those places, because that would mean that I had not secured them. To secure them must mean not only directing the college to provide them but also directing it not to admit people from other local authorities.

Lord Young of Norwood Green: I must admit that I am now a trifle puzzled by the noble Lord. On the one hand he wants ultimate flexibility, but on the other he is now saying that he does not really want that in his commissioning process. With sub-regional groupings, that is exactly what we need to address. Of course there will have to be a bottom-up process. It will not be the councils not taking any notice of colleges' current requirements. In arriving at the 14-to-19 partnership strategic plan negotiated by providers and local authorities, they will have to take notice. That is how they will build up a picture of the requirements. If you are serious in saying that you want young people to have the ability to cross boundaries, you have to be able to meet that requirement. The only way in which you can do it is not in the silo of one local authority but by co-operating in these sub-regional groupings that the local authorities themselves have willingly entered into. They believe that they are necessary and will meet 90 per cent of the requirements.

I have some sympathy with the noble Lord, as he has enabled me to explain in detail the precise nature of the commissioning process and to satisfy not only him but the Committee generally that it will be a demand-led process which will reflect the demands of learners and have flexibility. I have offered to write and further explain that process, because I think that that would be helpful.

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Lord Lucas: But none the less what the noble Lord is saying is that the local authorities will have the power to tell colleges what courses they should teach and when and to whom.

Lord Young of Norwood Green: I am emphatically not saying that. I do not want to be misrepresented. I am not saying that that is how it will operate. In fact, I have taken great pains to say the complete opposite-that they will be working in partnership to try to assess the nature of demand, not dictating exactly, in the way that the noble Lord has unfortunately misrepresented. Rather than our continuing this rather circular argument, I hope that the noble Lord takes my offer to write and explain further at face value, as a genuine attempt to help.

Lord Lucas: Yes, I will. There are one or two other points that I want to come on to. If what I said is not true, how is a local education authority to live up to the wording of lines 8 and 9 on page 23, to,

That is the point of my amendment. The noble Lord really has not addressed my amendment at all in its detail. For example, if I am required to "secure" that the noble Lord has an 8 ounce steak for lunch tomorrow, I have to go out and buy it.

Lord Young of Norwood Green: I will have one more go. "Secure" means reaching an agreement with the college on how much it can deliver on each course. If it cannot deliver for all demand, of course the local authority will need to look elsewhere. So it is a collaborative process, involving discussions with the colleges about the nature of the demand and the courses that they can deliver. That has to be part of the process.

Lord Lucas: Fine. If the local authority "agrees with", it is getting into the interstices of a college and telling it, "We are going to fund this sort of course, and that is what you will provide". Not only that but, in order to "secure" it, it must ensure that the capacity that it has generated is not then used by people outside its area. That is what I am getting at in my amendment. The Government are placing a duty on local education authorities that will require them to interfere deeply with how individual colleges are run. The noble Lord has not disabused me of that at all.

My Amendment 91E, to add the interests and views of the learners who are supposed to be provided for to subsection (3) of new Section 15ZA, has not been addressed at all. Nor has my Amendment 102B. I do not see how a local authority can, of its constitution, without something in statute, "have regard to" the interests of people outside its area. Just a duty to co-operate with other local authorities presumes that it, as part of its duty to its constituents, will have an interest in those pupils going outside its borders. This is not how local authorities have generally behaved in the past. For instance, in the transport provision made for students who wish to attend Greenhead College, co-operative arrangements on post-16 transport have been in place for some while. Do they extend to students who want to travel from Manchester to

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Greenhead? No. Local authorities have chosen not to co-operate in helping students to go outside their boundaries.

We had in London some long while ago the Greenwich judgment about students travelling between one borough and another in order to get their ordinary education. That caused an immense ruckus and there are still continuing attempts by London local authorities to restrict access to their schools to pupils who live within the boundaries of the borough. I suppose that one could justify not allowing students to travel on the basis that they should not be consuming all the energy and transport fuel required to do it.

It is not part of the pattern that local authorities want to provide or use facilities beyond their boundaries. It is not part of the pattern of education in this country that specialist provision is well used and celebrated by local education authorities. Many good specialist colleges find it extremely hard to come by students. The noble Lord is living in cloud-cuckoo-land if he thinks that the Stalinist-style co-operation that he is proposing will work in the best interests of students. However, I look forward to his magnum opus coming my way. I shall be able to read out large sections of it on Report. If no one else wants to intervene, I beg leave to withdraw the amendment.

Amendment 91A withdrawn.

Amendments 91B to 91E not moved.

9.15 pm

Amendment 92

Moved by Baroness Sharp of Guildford

92: Clause 40, page 23, line 27, after "diversity" insert "and inclusion"

Baroness Sharp of Guildford: I shall speak also to Amendments 97, 99 and 100, which fall in the same grouping. Before I address them, perhaps I may say that I hope that the letter that the Minister is to send to the noble Lord, Lord Lucas, will be shared with us all, as I think that we would all be interested in seeing it.

The only point that I might have made on the previous grouping was that at present the LSC commissions places at colleges, as the noble Lord well knows. Essentially, it commissions places generally for those aged 16 to 19. It does not commission specific provision, although there is some negotiation with the LSC about that. If there is excess demand, essentially the local authority negotiates with the LSC about whether funding is available. As I see it, that is where the difficulty for local authorities lies. The LSC has a very large pot of money, whereas local authorities have a much more limited pot, which frequently has many other calls on it. That is where the difficulties would arise.

I shall now address the amendments. As the noble Lord, Lord Lucas, said, we have shifted our attention from issues such as apprenticeships and time off for training to the role of local authorities in the provision of nought to 19, cradle to college, education. Here, we are looking particularly at the provision of education

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for 16 to 19 year-olds. That is to go back to local authorities, which will now have a new duty. In particular, under Clause 40(1) it will be incumbent on them to meet the reasonable needs of learners in the area that they serve and, under subsection (3)(b), to have particular regard to any learning difficulties that individual learners may have. To some extent, we have already rehearsed the fact that the record of local authorities in this area is, to say the least, somewhat mixed. As a result, we have sought, through a succession of education Bills in this House, to make more explicit the precise duties of local authorities in this regard. These amendments are in that tradition. They pick up the whole question of what local authorities' duties are to those with learning difficulties and they try to probe further precisely what they should be.

Amendment 92 would ensure that local education authorities have due regard to their responsibility to promote inclusion. Clause 40(4) places a duty on local authorities to act with a view to increasing diversity in education and training, which, to my mind, in government-speak means increasing the choice of courses available to the individual. However, that is not the same as inclusion, which means more attention being paid to person-centred assessments and advice and guidance in the choice of courses. Amendment 92 suggests that we should have not only diversity but diversity and inclusion. To some extent, we have spelt that out in Amendment 99 in my name and that of the noble Lord, Lord Low of Dalston, which says that local authorities need to take account of,

That spells out in greater detail precisely what we mean by inclusion.

I have a specific question for the Minister that has been put by the disability lobby relating to the responsibilities on the part of the YPLA on the issue of inclusion. Will those with learning difficulties be able to participate in mainstream courses, as much as in discrete courses? The experience of many of those involved in the commissioning of the education of those with learning difficulties is that frequently there has been provision of discrete courses but not inclusion within some of the mainstream ones. Will the Minister clarify whether it is Parliament's intention that diversity of provision should include choice of mainstream courses for all those with learning difficulties who are being funded either by the YPLA or the SFA, for those with learning difficulties who are over 25, and that it is not just the provision of special courses, so that the concept of inclusion has its true meaning? They should be able to participate in mainstream courses and specialist support should be provided in those circumstances. Amendment 92 wants inclusion to be separate from diversity. The amendment is a probing one, and we want the Government to explain what they mean by diversity in this context and spell out in more detail what might be included.

Amendment 97 is again a probing amendment to clarify how the Government intend to audit LEA compliance with their duties towards young people with learning difficulties. A robust needs analysis must

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be carried out to ensure that provision is an integral part of the widely supported sufficiency duty in the recent Childcare Act. When a similar amendment was debated in the Commons, the Government argued that structures were already in place to ensure that local authorities could be held to account for the delivery of these new duties in the Bill. In particular, they argued that the outcomes-focused performance management systems now set up within the framework of the local area agreements, combined with assessment and inspection by Ofsted, should provide sufficient pressures towards compliance.

Coming from the county of Surrey, whose children's services were judged inadequate by Ofsted, but which until that external check had been very complacent about the quality of its own provision, I have to admit that it is extremely important that these audit procedures are acted upon and are not allowed to continue without action. Amendment 97 would make sure that any such Ofsted or audit procedures are heeded and that their recommendations are followed.

Amendment 100 picks up the issue of what is disproportionate. Clause 40(5) states:

"Provision is not to be considered as giving rise to disproportionate expenditure only because it is more expensive than comparable provision".

The amendment adds the rider,

The Government know that the Special Educational Consortium is very unhappy about subsections (4)(e) and (5). It feels that the duty to secure a sufficient supply of post-16 education is unhelpfully qualified by a requirement that LEAs should avoid provision that gives rise to disproportionate expenditure. The probing amendment was withdrawn when the Government indicated that Clause 45 specifically states that provision is not to be viewed as giving rise to disproportionate expenditure and that an individual can challenge an LEA if it does not meet that criterion.

The Special Educational Consortium feels that this is not a sufficient safeguard, and it should not be left to the individual to enforce the duty on the LEA. The SEC is seeking further clarification from the Minister as to why the Government believe that this qualification is necessary, particularly where there is a clear duty to secure suitable education and training that meets reasonable needs of people in their area. These four amendments seek to probe a little further and clarify precisely how the Government see the local educational authority provision meeting the needs of those with learning difficulties. I beg to move.

Lord Rix: There appears to be a certain amount of cross-fertilisation between the amendments of the noble Baroness, Lady Sharp, and my Amendments 94 and 143, which I hope will arrive this evening but will probably arrive on Thursday. Amendment 94 would get rid of lines 36 to 41, which the noble Baroness has been addressing, and make further substitutions available to your Lordships. I hope that my amendments will receive approval. As an interim measure, I support the noble Baroness, Lady Sharp.

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Lord De Mauley:The noble Baroness, Lady Sharp, raises some important points. We have already held extensive debates on the merits of the transfer of duties of education of 16 to 19 year-olds to local authorities, not least on the previous group of amendments. Noble Lords will be relieved to hear that I do not propose to rerun these debates now. However, the noble Baroness has raised some important related issues in this group. If these duties are to be transferred to local authorities, which already have strained budgets and capacities, we must ensure that certain safeguards are built into the structure. As the Committee will be aware, as I have said before, and as we will be discussing later, we on these Benches have serious misgivings about transferring these functions to local authorities.

Nevertheless, if the Bill as it stands is accepted, we would wish to support those who intend to ensure that safeguards are in place to protect those who might be most at risk from budgetary or staff constraints. Amendment 92 widens the scope of the local authority's obligations, asking that it should have regard not only to diversity, but to inclusion, with which we have some sympathy. Amendment 97 requires recommendations from its own audit process and from Ofsted to be taken into account and seems sensible. In an ideal world, we would hope that local authorities would regard this as an implicit and obvious function of their duties. Will the Minister confirm that he would expect that to happen? Does he have any concerns that it might not? Will he assure us that local authorities will see this issue as a priority in order to ensure that the highest standards of education are provided?

Amendment 99 also raises concern about the delegation of those powers and duties to local authorities. It demands that they must take into account provision of information, transparency, assessment, participation of disabled children and feedback and complaints procedures. Those all appear to be sensible to ensure that if local authorities cannot cope under the strain of those duties, it does not go unnoticed. We would all agree that it is of vital importance that if a lack of capacity in a local authority has the consequence that people are not receiving the education to which they are entitled, an open and transparent process would allow that to be brought to the attention of the appropriate authority. Will the Minister tell us whether, as the Bill stands, the appropriate authority to deal with an underperforming local authority would be the YPLA?

Amendment 100 seeks to ensure that those who have learning difficulties or other disabilities are not excluded from provision simply because it may give rise to increased expenditure. I hope that that will not be the case and look forward to the Minister's response.

9.30 pm

Lord Addington: I will join the Committee debate for the first time. When I looked at the Bill and the type of briefing that came through, as my noble friend suggested, it was a step down memory lane. It seemed that a type of provision that we had almost taken as read in other education Bills was being ignored. It may well be that a series of protections about special educational needs and learning disabilities are entrenched in the Bill, but it is not obvious to those outside. The

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noble Lord, Lord Rix, is nodding his head in agreement. Many people feel that something has been missed, and that it is missing in the tone and presentation of the Bill. I would be happy if the Minister could give us a hint that the provision is in place because the idea hinted at in "disproportionate expenditure" is that something that is simply too expensive will be removed.

I would have thought that the idea of reasonableness encapsulated in the DDA would have covered that with the cross-fertilisation of legislation. We have spent years trying to make sure that legislation applies across, yet something in the Bill seems to contradict that. People are starting to get worried. I hope that the Minister will be able to dispel a few of the demons that the Government have summoned. Are they going to make sure that arbitrary blocks will not be placed in the way of the education of those who have a slightly different learning pattern? What level does "disproportionate expenditure" mean? I do not know. In the past, it has meant something new and difficult. The Minister looks slightly perplexed, but let me assure him that I have sat in this Chamber for more than 20 years and have talked to various Ministers of various colours for whom doing something new and difficult was shocking and dreadful.

Can the Minister give us an idea of where the Government's thinking is going in the round, what they expect not to happen and how flexible they are going to be in the introduction of new technology and other things? All these things have recently been challenged in the press. I always talk about dyslexia on these occasions. We were recently told by one or two people that it does not exist. On one occasion, it was by a member of the Minister's party-he looks surprised. It is true that he was flattened by members of his own party for that; the rest of us were queuing up to do it, but they got there first. Reassurance is required here. Can the Minister assure us that the existing safeguards and the structure that we expect are in place?

Baroness Howe of Idlicote: I support these amendments. It is important that we consider them both as specifics and in the wider world in which they will be applicable. A number of us have tabled amendments. My name is attached to an amendment tabled by my noble friend Lord Ramsbotham, but we are clearly not going to reach it tonight, so we shall see whether it is relevant to raise it on a different occasion. The point about inclusion raised by the noble Baroness, Lady Sharp, is crucial. Does inclusion mean that those with special difficulties will be equipped with whatever is required for them to take part in the ordinary, normal procedures of the learning process in a particular course? Auditing what is achieved by these amendments is equally important.

The other point concerns what is disproportionate extra expenditure. That has been gone into in quite some detail. Nevertheless, it is an area where we will need more reassurance that different LEAs will not interpret this phrase in different ways.

There is a lot for the Minister to take on board. Perhaps he will not be able to answer all the queries tonight. I am pretty certain that many them will come back on Report, if not the day after tomorrow when we continue our trek.

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Lord Young of Norwood Green: I turn first to the opening remarks of the noble Baroness, Lady Sharp, on expenditure. We are not talking about a small sum of money. The national figure for participation for 16 to 19 year-olds for the academic year 2009-10 is £6.8 billion, according to the Secretary of State for the DCSF. The London region has more than £1 billion. These are not small sums, and they are part of the September guarantee.

I will return to the subject of inclusion, which lies at the heart of what we are trying to do. On the one hand, people call for inclusion, which is quite right. On the other, they call for specialist provision. What we want is choice. We have to try to meet those needs. Inclusion in the mainstream will suit some young people and will be what some parents want, but not what all parents want. Some parents are just as focused on specialist provision. We have tried to meet a wide range of needs. I reassure the noble Baroness that local authorities will need to act in a way that encourages young people with special needs to exercise choice in the same way as other young people. Specific provision for choice is made in Clause 40(4)(b).

I reassure the noble Lord, Lord Rix, that we will come to his superb amendments-superb just in their structure, of course-in a later group, and will address them then. The noble Lord, Lord De Mauley, asked about local authorities that cannot cope. It will be the YPLA that assists them.

I will pick up on a point made by the noble Lord, Lord Addington, and remind him that the Bill says clearly, in Clause 40(5):

"Provision is not to be considered as giving rise to disproportionate expenditure only because it is more expensive than comparable provision".

That should not rule out special provision. I trust that we have come a long way since the outdated attitudes to dyslexia. We have recently announced a considerable number of specialist assistants for dyslexia. I will come back to some of his points if I need to.

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